"I feel more comfortable with EPA in the lead," said Ken Ellison, director of the DEP's Division of Land Restoration. "I believe that EPA has more resources and more levels of support than we do." The latest in the dioxin battle The December lawsuit is far from Calwell's first battle with Monsanto over dioxin.
In the mid-1980s, Calwell spent more than 10 months in trial trying to prove that seven Monsanto workers were made sick by handling dioxin-contaminated 2,4,5-T. A federal court jury returned a verdict against the workers. After the trial, Calwell and his clients blamed rulings by U.S. District Judge John T. Copenhaver to not allow some of the workers' key evidence, according to press reports from the time. Among other things, Copenhaver would not let Calwell use an EPA map showing dioxin contamination at the Nitro plant in 1983 - more than a decade after Monsanto stopped making its contaminated herbicide.
In 1983 and again in 1985, the EPA and Monsanto agreed to deals under which the company was to clean up the Nitro site.
Today, though, the area remains polluted.
In a July 2000 report, the EPA said the Kanawha River contains unsafe and illegal levels of dioxin. The EPA said it should be cleaned up, but the agency proposed no specific steps and has not ordered any action.
In August 2000, Calwell sued Monsanto on behalf of a group of residents along Heizer and Manila creeks near Nitro. The residents allege that the dumping of dioxin wastes by the company polluted their properties.
The residents sought to expand the Supreme Court's 1999 "medical monitoring" ruling to also allow lawsuits to force polluters to pay for property monitoring. In December 2002, the court declined to do so. That lawsuit continues, though, as residents seek other damages for Monsanto's pollution.
Meanwhile, Monsanto lawyers have cited the 1983 and 1985 EPA orders as reason for the Heizer/Manila lawsuit and the more recent Nitro case to be dismissed.
Charles Love, one of Monsanto's lawyers, argued that the EPA orders pre-empt any effort by the residents to sue. If the EPA has or is taking action, Love argued, then residents cannot file their own lawsuit.
In Putnam Circuit Court, Judge O.C. Spaulding rejected Love's argument.
Last week, Love sought to move the case to U.S. District Court in Charleston.
In an interview last month, he said he had not examined Calwell's dioxin test results.
"We're too early in the litigation to have reached that point," Love said.
Glynn Young, a Monsanto corporate media spokesman, said the company did not take Calwell's test results too seriously.
"Yes, these kinds of things need to be looked into, and if this information had come from anybody but a plaintiffs' attorney, it might have been handled differently," Young said.
"Lawsuits of this nature are not uncommon," Young said. "This is what a lot of people do for a living. We have been down this road before with Mr. Calwell 20 years ago." Two cases, different result In north-central Minnesota, St. Regis Paper Co. operated a wood-treatment plant for more than 30 years. The 125-acre site northeast of Duluth is on the Leech Lake Indian Reservation between Pike Bay and Cass Lake.
Starting in the 1950s, lumber was pressure treated with creosote and chemicals called pentachlorphenol and copper chromium arsenate. This process generated various types of pollution, including dioxin and arsenic.
In 1984, the EPA added the site to its Superfund program, putting it on the priority list for toxic waste cleanups.
In October 2004, contractors tested homes in the area for dioxin dust.
They found concentrations ranging from 0.234 parts per trillion to 240 parts per trillion.
The EPA said in a report that, "the amount of indoor dust concentration from the site exceeded what the EPA considers to be acceptable for six of the 10 homes sampled." As a result, the EPA proposed to order International Paper, which now owns the site, to clean up the homes.
The science behind such an action is fairly new. The EPA based it on work done to study and clean up the former World Trade Center site in lower Manhattan.
"We're taking a conservative approach to what we've found," said Tim Drexler, the EPA's project manager for the cleanup.
In Nitro, the median dioxin dust concentration for the 33 homes Calwell tested was 238 parts per trillion - roughly the same as the highest concentration the EPA found at the Minnesota homes.
EPA officials say they are not convinced the numbers can be accurately compared.
In Minnesota, the dust samples were taken from living areas inside the homes. In Nitro, Calwell's firm collected dust from attics and crawl spaces.
Sturgeon, the EPA project manager in Nitro, said the living-area samples more accurately reflect ongoing exposure. But Sturgeon agreed with Calwell that attic samples give a better estimate of how much dioxin has been in the home over a longer period of time - say, since the Monsanto plant last made 2,4,5-T in the early 1970s.
"If you want to know, over history, what accumulation of dioxin you had in a home, attic dust is one of the few places you could look," Sturgeon said.
'Wouldn't you be concerned?' Since he filed the lawsuit, Calwell has collected more dust samples in Nitro.
In court, he also is trying to halt the efforts of Monsanto to shed itself of any liability for pollution of the Nitro area. He hopes to avoid having that liability wiped out as part of a bankruptcy proceeding for one of Monsanto's successor companies.
At the EPA's regional office in Philadelphia, officials have agreed to re-examine the Nitro situation based on the additional dust samples.
In Charleston, officials from the state Bureau for Public Health's ATSDR program are reviewing that data at the EPA's request.
Barbara Smith, an epidemiologist with that program, said she is not sure yet if the data Calwell collected will give her agency enough to do a complete study.
"Just getting numbers is not going to be enough," Smith said. "We've got numbers, but we're not sure we have enough data." If that's the case, Smith said, her agency might ask the EPA to do its own sampling to provide adequate data for a study.
Eric Carlson, an EPA liaison officer in Wheeling, said it would not be fair to say his agency is not doing anything about the dioxin problem in Nitro.
Carlson cited a March 2004 EPA deal in which Monsanto agreed to do a new study of dioxin contamination in the Kanawha River. As a result of that deal, contractors for Monsanto performed new fish sampling in the Kanawha.
"I wouldn't say nobody is doing anything," Carlson said. "There is a significant amount of work being done about the river." Residents say more studies of the river are small consolation for them.
"I'm concerned about the damage that has been done," said Ross Stone, who has lived in Nitro for 55 years and in the same house for 52 years. "I'm interested to find out just exactly what the outcome is going to be, how it affects people." Joan Dixon, a 45-year Nitro resident, said, "There's dioxin in my attic, and in my yard, too. Wouldn't you be concerned?"